This week, a committee at the Scottish Parliament approved regulations, link here, to bring all remaining provisions of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 into force on 7 December 2021.
- “A fair contribution is one where an organisation that is named in an application as having been responsible for the care of the survivor at the time of abuse pays the relevant share of any individually assessed redress payment above and beyond the Scottish Government contribution.”
- The Scottish Government contribution will cover the £10k fixed rate payment and one third of any individually assessed top-up such that, subject to any issues with any particular contributor on affordability, sustainability or any agreed cap (all as considered in more detail below), contributors will pay the balancing two thirds of any individually assessed top-up. This is all subject to the overarching point that where relevant organisations have not contributed, Scottish Government will meet the full cost of all redress payments. There is also a provision for equal allocation where there was more than one relevant care setting for any single application.
- “A meaningful contribution is one that represents sincere and committed participation in the national collective endeavour to acknowledge the harms of the past and provide access to a trauma informed and non-adversarial redress scheme for survivors. It means that contributing organisations participate on the understanding that they will not see or be able to comment on applications.”
- To qualify as listed contributors, organisations will have to “publicly and explicitly acknowledge the wrongfulness of, and the harm caused by, the historical abuse which took place in relevant care settings.”
- Contributors will also be required to report annually on their wider redress activity in terms of the legislation and any directions made under it.
- “Once an organisation has committed to make a fair and meaningful contribution in agreement with Scottish Ministers, and has paid the first instalment of their contribution, the organisation will be added to the contributor list.”
- “If affordability or sustainability is an issue for an organisation, Scottish Ministers may consider giving the organisation a longer amount of time to pay the fair and meaningful contribution amount.”
- “In exceptional circumstances, Scottish Ministers may decide that the contribution amount should be less than the total number of payments relating to that organisation. A reduction in the contribution amount will only be considered by Ministers where the organisation produces information and evidence on its financial circumstances and the services it provides.”
- “Scottish Ministers will give contributors the opportunity to agree a maximum financial contribution to be paid (known as “a cap”). This is to give scheme contributors certainty in regards to their financial planning and to make sure that important services delivered by the organisation are not compromised.” Where selected it requires to reflect the considerable uncertainty in estimating the number of children abused in care, the proportion of survivors who will apply and the average award.
In another recent development, the Secretary of State for Scotland, who sits in the UK Government, issued an Order, link here, to remove certain legal obstacles that may have prevented charities registered in England & Wales from contributing to the Scottish redress scheme in a similar way that s.17 of the 2021 Act removed such obstacles for charities registered in Scotland. It contains a provision to confirm that making the redress contribution is within the charity’s purposes and consistent with its constitution or trust. This Order also facilitates UK-wide recovery of relevant documents by Scottish Ministers, under pain of criminal penalty for non-disclosure, and imposes certain obligations on Scottish Ministers on their issuing of notices for such recovery within a certain timescale following request by Redress Scotland, the independent public body that will administer the scheme.
In a final pre-implementation step, a committee at the Scottish Parliament has approved regulations, link here, on recovery by Scottish Ministers of certain payments in connection with the scheme made in error. This does not relate to redress payments themselves but to matters such as legal fees and other costs.
It has also now been announced that Redress Scotland has completed the appointment of 20 panel members such that it is ready to start considering applications from 7 December 2021.
To re-cap, the scheme being established is for redress payments upon successful application to those who were abused as children (under 18) in relevant residential care settings in Scotland before 1 December 2004. Successful applicants will receive a redress payment of one of £10k, £20k, £40k, £60k, £80k or £100k. The £10k is a “fixed rate payment” which may be topped-up to any of the higher levels by an “individually assessed payment” taking account of the nature, severity, frequency and duration of the abuse and any other relevant matter. Next of kin of relevant deceased persons can apply for a redress payment of £10k, or a relevant share of that, where the person abused died on or after 1 December 2004. A litigation waiver is to be signed by applicants in exchange for a redress payment with the waiver operating in favour of Scottish Government and any “relevant scheme contributor” listed by Scottish Government as making a “fair and meaningful” contribution to the scheme.
Frank Hughes, Partner and Fiona McEwan, Associate